SINGAPORE Law and Practice Contributed by: Lim Chong Kin and Corinne Chew, Drew & Napier LLC
2.8 Protection of Confidential/Proprietary Information Parties cannot refuse to provide information or documents on the basis that they are confiden - tial. However, parties are allowed to claim confi - dentiality over any information that they furnish to the Commission, and Section 89 of the Com - petition Act protects such confidential informa - tion (subject to certain statutory exceptions) by requiring the Commission’s officers and other specified parties handling such information to preserve and aid in the preserving of secrecy, including all matters relating to the business, commercial or official affairs of any person. 2.9 Arguments Against Enforcement Actions Defence counsel may raise legal and factual arguments to persuade the Commission to for - go taking action in response to enquiries by the Commission or by proactive engagements with the Commission during an investigation. During the Commission’s investigations, and before the Commission decides whether the Section 34 Prohibition has been infringed, enti - ties under investigation may come forward to voluntarily offer legally binding commitments to address the competition concerns identified in the course of investigations. The Commission will cease its investigations if it accepts these commitments. Legally binding commitments can be enforced by the Commission through the courts under Section 85 of the Competition Act. While it is not stipulated in the Competition Act, defence counsel may play a role in this process in advising the relevant entity under investigation on the offering of legally binding commitments. In the Commission’s Guidelines on Direction and Remedies (previously named the Guidelines on Enforcement of Competition Cases 2016), the
dence Act” ). This was affirmed in the Commis - sion’s Guidelines on the Powers of Investiga - tion in Competition Cases 2016, which stated that “communications with in-house lawyers, in addition to lawyers in private practice including foreign lawyers, can benefit from the privilege” . Section 66 (2) of the Competition Act provides a saving provision in respect of statements that may tend to incriminate individuals. Where an individual claims, before making any statement disclosing information, that the statement may tend to incriminate them, that statement shall not be admissible in evidence against them in criminal proceedings other than in proceedings under Part 5 of the Competition Act relating to ancillary offences such as providing false or mis - leading information (see 6.4 Evidence Obtained From Governmental Investigations/Proceed- ings ). Notwithstanding, these statements may be used by the Commission in its investigations and enforcement and remain admissible as evi - dence in civil proceedings, including proceed - ings under the Competition Act (see 1.2 Regula- tory/Enforcement Agencies and Penalties and 6.1 Private Rights of Action ). 2.7 Non-Cooperation As mentioned in 2.3 Spoliation of Evidence , the Competition Act provides for offences in relation to obstruction of the Commission’s investigation efforts, which carry a sentence of imprisonment, a fine, or both. Furthermore, certain forms of non-cooperation, such as unreasonable failure by an undertaking to respond to a request for financial information on business turnover and/ or relevant turnover, may be considered by the Commission as an aggravating factor in deter - mining the appropriate financial penalty to be imposed, where relevant.
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